United States v. Erick Herrera

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 14-50231

Plaintiff - Appellee, D.C. No. 3:13-cr-02818-BEN
Southern District of California,
v. San Diego

ERICK HERRERA, ORDER

Defendant - Appellant.

Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.

memorandum disposition is filed concurrently with this order. As so revised, the

sentence imposed is AFFIRMED.

No further petitions for rehearing will be entertained.
 NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50231

Plaintiff - Appellee, D.C. No. 3:13-cr-02818-BEN

v.
MEMORANDUM*
ERICK HERRERA,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Submitted July 20, 2015**

Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.

Erick Herrera appeals from the district court

46-month sentence imposed following his guilty-plea conviction for importation of

heroin, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 denial of a minor role reduction,

arguing that the court incorrectly compared him to a hypothetical average courier.

uidelines de novo. See

United States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). In

evaluating whether a defendant is a minor participant, the district court must

compare s conduct and that of the other participants in the same

offense. United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000)

(internal quotations omitted). suggestion that Herrera ought to

be compared to a hypothetical average courier was, therefore, incorrect. See id.

H s error was harmless because the record reflects that the

court was aware of the other participants in the offense and agreed with the

g substantially less culpable than the average

in the offense given his quasi-supervisory role over L.G. See

U.S.S.G. § 3B1.2 cmt. n.3(A). The district court also properly cited the quantity

of drugs transported and the minor role

adjustment. See United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014),

cert. denied, 135 S. Ct. 1467 (2015) (quantity of drugs and the amount paid to the

defendant are facts that alone may justify denial of a minor role .

2 14-50231
AFFIRMED.

3 14-50231